September 23, 2015

Federal Court of Appeal Agrees that Niqab Ban in Citizenship Ceremonies is Unlawful

Posted by Legal Team - Bellissimo Law Group PC

On Tuesday of last week, the Federal Court of Appeal upheld the decision striking down the ban on face coverings at Canadian citizenship ceremonies (2015 FCA 194). The Federal Court deemed the ban unlawful in February, and the government’s appeal of this decision was dismissed last week. This has become a highly divisive issue in the current political landscape and on the campaign trail.

The Applicant who brought the challenge is Zunera Ishaq, a permanent resident of Canada originally from Pakistan. In 2013, she refused to take part in a Canadian citizenship ceremony which required her to remove her niqab during the ceremony itself. She was, however, willing to remove her niqab in front of a female officer in order to confirm her identity.

Ms. Ishaq took the matter to the Federal Court where the Honourable Mr. Justice Boswell determined that the government’s 2011 policy introducing the ban is in fact inconsistent with citizenship legislation (2015 FC 156). Specifically, subsection 17(1)(a) of the Citizenship Regulations states that:

  1. (1) The ceremonial procedures to be followed by citizenship judges shall be appropriate to impress on new citizens the responsibilities and privileges of citizenship and, without limiting the generality of the foregoing, a citizenship judge shall, during a ceremony held for the presentation of certificates of citizenship,

[…] (b) subject to subsection 22(1), administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof;

Justice Boswell held that the ban was incompatible with the regulations because a citizenship judge could not possibly allow the greatest possible freedom in the religious solemnization if an individual taking the oath was required to “violate or renounce a basic tenet of their religion.” The ban was therefore deemed unlawful by the Federal Court; a decision which the Federal Court of Appeal reinforced last week.

The government announced that it will seek leave to appeal to the Supreme Court of Canada, and further that it will be seeking a stay of the Federal Court of Appeal’s ruling. Ms. Ishaq’s counsel has said that they hope to argue the stay as soon as possible so that if the court denies the stay, Ms. Ishaq can still obtain her citizenship in time to vote in the upcoming federal election.